RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201453 DATE OF PLACEMENT ON TDRL: 20020129 BOARD DATE: 20130307 DATE OF PERMANENT SEPARATION: 20040704 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91B/Medic) medically separated for asthma. She was treated, but did not improve adequately to fully perform her military duties, or meet physical fitness standards. She was issued a permanent P3 profile and underwent a Medical Evaluation Board (MEB). The MEB found her asthma condition medically unacceptable IAW AR 40-501, and referred her to a Physical Evaluation Board (PEB). Two orthopedic lower extremity conditions (fractured right 4th metatarsal, and bilateral retropatellar pain syndrome) were also listed on the DA Form 3947. The PEB found the asthma condition unfitting, but not sufficiently stable for final, permanent adjudication. The CI was placed on the Temporary Disability Retired List (TDRL) with 30% disability. The other two MEB conditions were both found “not unfitting, not rated.” In October 2003, a second Army PEB was convened. The CI was found unfit due to asthma, and separation was recommended at 10% based on intermittent inhalational bronchodilator therapy, IAW the Veterans’ Administration Schedule for Rating Disabilities (VASRD). The CI accepted the PEB findings and was medically separated with 10% disability. CI CONTENTION: “I feel I should have been rated higher than 10% because the side effects from the meds made me gain weight and contributed to other conditions. I was still able to do my job, but could not run anymore. My transition to civilian living was a hard process with 4 children. I still suffer with asthma and taking meds every day.” SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The unfitting asthma condition and the two orthopedic lower extremity conditions (fractured right 4th metatarsal & bilateral retropatellar pain syndrome) meet the criteria prescribed in DoDI 6040.44, and are accordingly addressed below. No other conditions are within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Final Army PEB – dated 20031014 VA – All Effective 20020130 Condition Code Rating Condition Code Rating Exam TDRL Sep. Asthma 6602 30% 10% Asthma 6602 30% 20020522 Fracture, Right Foot Not Unfitting Fracture, Right Foot NSC 20020522 Bilateral Knee Pain Not Unfitting Arthritis, Bilateral Knees 5010 10%* 20020522 Major Depressive Disorder 9434 30%* 20020528 Gastroesophageal Reflux 7399-7346 10% 20020522 .No Additional MEB/PEB Entries. Other Not Service Connected (NSC) x 2 20020522 Combined: 10% Combined: 60%* * Some of the VA ratings (Arthritis, Depression) were later increased by subsequent VA Rating Decisions ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which her conditions continue to burden her, and the significant impact they have had on her quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate the CI for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. Compensation can only be granted for the degree of severity present at separation. The DVA, however, is empowered to re-evaluate a CI’s conditions for the purpose of adjusting the disability rating should the degree of impairment change over time. Asthma. The CI developed shortness of breath (SOB), and inability to run or perform physical training. She was seen by pulmonary medicine and was diagnosed with mild persistent reactive airway disease (RAD). She was treated with medications, and had some improvement in her asthma. However, in spite of treatment, she was unable to fully perform her military requirements and an MEB was initiated. The MEB clinical evaluation was in September 2001. At that time, she was on four chronic daily medications (Flovent, Seroquel, Albuterol, and Singulair). On exam, her lungs were clear to auscultation. As noted above, the CI was found unfit for military service and was placed on the TDRL with a disability rating of 30%. The Board considered all the evidence, and determined that a 30% rating at that time was appropriate since she was being treated with inhalational anti-inflammatory medication and daily inhalational bronchodilator therapy. The VASRD §4.97 criteria for a higher rating of 60% were not met. Based on the evidence in the treatment record, the Board has no basis to recommend a rating higher than 30%, at the time of initial placement on TDRL. In August 2003, the CI had a clinical re-evaluation. She was going to college and majoring in social work. She was physically active, playing softball 3 days a week and walking 2-3 miles per day. She was on daily doses of Advair (twice a day) and Singulair (nightly), and using Albuterol on an “as needed” basis. There had been no hospitalizations or emergency room visits for asthma. Her lungs were clear to auscultation with no wheezes, rales, or rhonchi. There was good air exchange to the bases of lungs. The Board carefully reviewed all evidentiary information available and directs attention to its rating recommendation based on the above evidence. The October 2003 Army PEB rated the CI’s asthma at 10% for requiring “intermittent inhalational bronchodilator therapy.” The PEB concluded that the medication profile did not reflect daily controller therapy. For the reader’s convenience, the VASRD §4.97 language for the 10% and 30% ratings (diagnostic code 6602) is excerpted below: FEV-1 of 56 to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication .....................................................30 FEV-1 of 71 to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy .................10 Using data from the treatment record, the Board determined that at the time of final separation from military service, the CI was being treated with daily inhalational Advair. This would justify a 30% rating. Advair is a dual agent consisting of Fluticasone (a corticosteroid anti-inflammatory), and Salmeterol (a long-acting beta adrenergic bronchodilator). There was no evidence for respiratory failure, frequent exacerbations requiring physician intervention, or use of systemic corticosteroids. Therefore, a higher rating of 60% was not justified. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by majority decision (2:1 vote) a permanent disability rating of 30% for the asthma condition. Other PEB Conditions. Two lower extremity orthopedic conditions (fractured right 4th metatarsal, and bilateral retropatellar pain syndrome) were adjudicated by the PEB as “not unfitting.” The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Both of these conditions were reviewed by the action officer and considered by the Board. There was no indication from the record that either of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for these two conditions, and therefore, no additional disability ratings can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the asthma condition, the Board recommends by majority decision (2:1 vote) a permanent disability rating of 30%, coded 6602 IAW VASRD §4.97. The single voter for dissent (who recommended a 10% permanent rating) did not elect to write a minority opinion. In the matter of the fractured 4th metatarsal and the bilateral retropatellar pain syndrome, the Board unanimously recommends no change from the PEB determination as “not unfitting.” There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation. UNFITTING CONDITION VASRD CODE RATING PERMANENT Asthma 6602 30% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120805, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130005348 (PD201201453) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)